History Makes the Best Argument to Keep Affirmative Action
On Monday, the Supreme Court hears oral arguments in two cases challenging the constitutionality of affirmative action in higher education. The plaintiff, Students for Fair Admissions, claims that Harvard and the University of North Carolina “award mammoth racial preferences” to Black and Hispanic applicants in violation of the Constitution’s equal protection guarantees and federal nondiscrimination statutes.
The court’s decisions will be shaped by decades of partisan contention over the meaning of affirmative action, during which opponents have distorted the policy’s justifications and obscured its successes.
Opponents’ constricted understanding of affirmative action today is not altogether surprising. For well over 150 years, many White Americans have felt disadvantaged by government policies enhancing opportunities for women and racial minorities in employment, education and other areas.
The central idea behind affirmative action — to provide groups harmed by discrimination with a more level playing field — has its roots in the Civil War and the Reconstruction era, when many Southern states adopted “Black Codes” to “confin[e] [Black people] to the bottom rung of the social ladder.” Determined to “reconstruct” the South, in the late 1860s and early 1870s, Radical Republicans from the North pushed bills through Congress to ease the transition from slavery to citizenship by guaranteeing “persons of African descent” equality under the law and providing them with land, shelter, clothing and other assistance.
Most White Southern Democrats, including former enslavers, bitterly opposed this legislation. They refused to accept economic equality for Black people, or their right to vote.
Beginning in 1867, opposition to Reconstruction turned increasingly violent, and support for civil rights waned in the North. Supreme Court decisions in the 1870s and 1880s adopted narrow interpretations of the 13th, 14th and 15th Amendments to the Constitution — which had been intended to end slavery, confer citizenship rights on formerly enslaved people and enable Black men to vote. These decisions weakened the civil rights legislation that Congress had passed.
By the 1890s, the state-sponsored segregation of the Jim Crow era had begun — setting the stage for decades of discrimination that affirmative action has been designed to address.
The actual term “affirmative action” first emerged in federal employment law in the 1930s, although it was largely just a rhetorical phrase conveying a commitment. Discrimination remained deeply entrenched throughout the United States.